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Jeremy Perri Guest Posts: SCOW holds warnings not required before finding defendant has forfeited right to counsel

State v. Jack M. Suriano, 2017 WI 42, affirming an unpublished court of appeals opinion, 2015AP959-CR; case activity (including posts)

In Wisconsin, a defendant can lose his or her right to counsel in two ways: waiver and forfeiture. Waiver is voluntary and requires a colloquy with the defendant. Forfeiture does not.

Three different attorneys accepted State Public Defender (SPD) appointments to represent Jack Suriano. Each, in quick succession, withdrew from representation. After granting the third attorney’s motion to withdraw, the court found that Suriano had forfeited his right to counsel.

The bases for the motions to withdraw: the client was difficult to work with. The first attorney referred to his client as “an ass,” and the third attorney commented that “the hostility and anger that this man has shown to me is such that I will not meet with him at any location that does not have screening with a metal detector.”  Addressing its finding of forfeiture, the court told Suriano “I’m not placing 100 percent of the blame on you, clearly you are an active participant in why those situations went haywire for lack of a better word.” Suriano represented himself at trial and was convicted.

In 1996, SCOW held that a defendant may forfeit his or her right to counsel, when the “court becomes convinced that the orderly and efficient progression of the case is being frustrated.” ¶24, quoting State v. Cummings, 199 Wis.2d at 753 n.15.

The 3-justice dissent in Cummings would have required, before imposing a finding of forfeiture, (1) explicit warnings that if the defendant’s conduct persists, the right to counsel will be forfeited; (2) a colloquy to make the defendant aware of the difficulties and dangers inherent in self-representation; (3) a clear ruling when the court deems the right to counsel to have been forfeited; (4) factual findings; and (5) appointment of standby counsel. The Cummings majority recommended, but did not require that trial courts follow steps 1-4. Id. at 756, 763, n.18.

Six years after Cummings, the court of appeals, commenting that forfeiture of counsel was a “drastic” and “extreme” remedy, determined that “forfeiture cannot occur simply because the effect of the defendant’s conduct is to frustrate the orderly and efficient progression of the case. The defendant must also have the purpose of causing that effect.” State v. Coleman, 253 Wis.2d 693 at ¶¶18, 24-25.

Many jurisdictions across the country [including Mississippi, South Carolina, Maine, Tennessee, Minnesota, etc.] have adopted a more nuanced, three-tiered approach to loss-of-counsel cases: (1) “Express waiver” is a knowing, intelligent and voluntary waiver of the right to counsel; (2) “Forfeiture” “covers circumstances…such as abusing or threatening counsel… results in loss of counsel without warnings”; and (3) “Waiver by conduct” when the defendant “engages in dilatory behavior but does not expressly waive his right to counsel.” In those situations, a defendant must be warned of the potential loss of counsel and the risks of proceeding pro se. (¶26-27, citing to United States v. Goldberg, 67 F.3d 1092, 1100-1101).

While the SCOW majority acknowledges the “substantial body of case law on this issue” and that “many state supreme courts have adopted the three-tiered approach,” since its decision in Cummings more than two decades ago, it nonetheless rejects the three-tiered approach and reaffirms Cummings. ¶¶27-28. “The approach this court adopted in 1996 has not been rejected by the Supreme Court and is sound in principle.” ¶29.  Satisfied that the record demonstrated “repeated dilatory tactics and abusive behavior,” SCOW affirms the circuit court’s finding of forfeiture, even though the recommended procedure from Cummings was not followed.

As to the Coleman’s requirement that a defendant must also have the purpose of causing delay, “circuit courts cannot read the minds of the defendants who appear before them,” and that requirement is overruled. ¶32.

A dissent, authored by J. Shirley Abrahamson, and joined by J. A.W. Bradley, would mandate an in-court, on-the-record colloquy, as set forth in the Cummings dissent. ¶37.

SPD appointments of counsel and motions to withdraw. The SPD, appearing as amicus, requested that “[w]hen a defendant seeks to discharge his or her appointed attorney based upon disagreement over procedure or strategy, the circuit court should clarify for the defendant and counsel which decisions are the client’s and which decisions are the attorney’s to make.” Faced with those disagreements, when a defendant declines to waive counsel, a court should usually deny the motion to withdraw. Amicus brief at 10. SCOW agreed:

We do encourage circuit courts, where circumstances allow, to instruct SPD-appointed lawyers and their clients about the choices for which each is responsible and that disagreement on legal strategy alone may be insufficient for withdrawal. Specifically, defendants retain “the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or taken and appeal.” See Jones v. Barnes, 463 U.S. 745, 751 (1983). All other tactical decisions, “including the objections to make, the witnesses to call, and the arguments to advance” are “of practical necessity” controlled by counsel because  “the adversary process could not function effectively if every tactical decision required client approval.” See Gonzalez v. United States, 553 U.S. 242, 249 (2008) (quoting Taylor v. Illinois, 484 U.S. 400, 418 (1988). ¶10, n. 5. (emphasis added)

Additional items of note. The SPD does not have a three-strike rule and when a court finds good cause for granting withdrawal, the SPD will appoint successor counsel. ¶6, n.4. Also, as explained in the SPD’s amicus brief, “when an appointed attorney moves to withdraw on his or her own initiative, the attorney should not disclose confidential information unless authorized by the client or by court rule. Just as SPD clients do not have a right to choose their attorney, SPD attorneys must take clients as they come.” Amicus brief at 11.

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{ 6 comments… add one }
  • Andrew M Morgan May 3, 2017, 12:40 am

    Attorneys can’t always “take clients as they come.” As the amicus brief acknowledges, we “owe a duty of undivided loyalty” to our clients. If we can’t deliver on that, for any reason, including a mismatch in interpersonal chemistry, then we need to step aside to give the client another chance to find someone who can. It is contradictory to argue that the right to counsel is satisfied by forcing an unwilling attorney on an unwilling client.

  • Colleen Marion May 4, 2017, 12:58 pm

    In response to the comment above, I think it’s absurd to suggest that a public defender/ppointed counsel must have “chemistry” with their client in order to effectively represent them. There are so many reasons why clients can be difficult such as mental illness, cognitive issues, or poor socialization. The right to counsel is not only for the nice and popular- it is for everyone. Paid attorneys can feel free to pick and choose their clients based on likability, but those of us who are charged with upholding indigent persons’ right to counsel– that’s a different story.

  • Andrew M Morgan May 4, 2017, 6:00 pm

    So I take it that if you were a defendant and stuck with me as your counsel, you should be happy. Go ahead, disagree.

  • Colleen Marion May 5, 2017, 11:34 am

    In this case the client never asked any of his attorneys to withdraw. One withdrew because, as he told the judge, he thought the client was an “ass.”

  • Peter Heyne May 12, 2017, 1:18 pm

    The decision did not appear to address the underlying ethical issues of “oversharing” by defense counsel. Attorneys in other jurisdictions have faced sanction for breaching client confidentiality by providing too much information in motions for withdrawal. Cf. the article by the State Bar ethics counsel Tim Pierce, “Leaving a Client: Confidentiality Upon Withdrawal,” Wisconsin Lawyer Vol. 84, No. 7, July 2011. available here

  • Colleen Marion November 21, 2017, 12:07 pm

    If you have a client in custody, and this issue arises, consider filing for a writ of habeas. The 7th Cir. agrees that WI law in this area is unconstitutional. In Smith v. Grams, 565 F.3d 1037, 1047 (7th Cir. 2009), the 7th Cir. granted a defendant’s writ of habeas corpus after he was forced to represent himself at trial. The facts were analogous to Mr. Suriano’s case, involving a perceived lack of cooperation and dissatisfaction with appointed counsel on the part of the defendant. Id. at 1039-40. The Wisconsin appellate court held that the defendant lost his right to counsel “by operation of law” even though the trial judge did not forewarn him. The Seventh Circuit disagreed, holding that, “even the Supreme Court’s minimal guidance makes it clear that the procedures followed by the Wisconsin state trial court were inadequate.” Id. at 1047.

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